Isn't "judicial activism" a phony issue? Don't both sides care more about the result than how it is reached?

"Judicial activism has become a code word for a result one doesn’t like. That’s too bad." Heather Gerken

June 5, 2009

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Send to a friendIsn\'t "judicial activism" a phony issue? Don\'t both sides care more about the result than how it is reached?"Judicial activism has become a code word for a result one doesn’t like. That’s too bad." Heather GerkenJune 5, 2009

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Nowadays, accusations of “judicial activism” almost always smack of insult rather than analysis. Pundits and politicians use it to mean “trumping legislative judgment inappropriately OR deferring to legislative judgment inappropriately”—in other words, “making a decision with which I disagree.” So liberals say that conservative justices are activists because they strike down affirmative action laws, gun control laws, and campaign finance regulations. Conservatives say that liberal justices are activists because they strike down anti-abortion laws and because they defer to the people’s elected representatives about affirmative action policies and property rights (for example, conservatives have said that Judge Sotomayor is an “activist” because she allowed New Haven’s elected representatives to decide whether to use certain test results when promoting firefighters).

Can we imagine principled uses of the concept? Sure. We might say, for example, that a judge is an activist if she disregards procedural rules—such as the requirement that plaintiffs have standing—in order to reach for juicy constitutional issues. Alternatively, we might say that judges should always defer to legislatures when the Constitution’s meaning is unclear, regardless of whether the case is about (say) affirmative action or abortion. ARENA’s Mark Tushnet recommended that kind of deference in his book, Taking the Constitution Away from the Courts. On this view, all the justices on the current Supreme Court—liberals or conservatives—are activists. But no recent justice, senator, president has embraced such sweeping deference.

The fact is that every justice, senator, and president seems to think that the Supreme Court should sometimes trump the judgment of elected officials on the basis of controversial interpretations of ambiguous constitutional language. Conservatives want the Court to strike down affirmative action policies; liberals want it to strike down restrictions on abortion. In these circumstances, complaints about “activism” are just cheap shots designed to avoid confronting the fact that reasonable people can and do disagree about what the Constitution means.

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